Biden's Border Action - An Objective, Nuanced Explainer

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:44 Thomas: Hello, and welcome to Opening Arguments. This is episode 1039. I'm your host, Thomas Smith, coming from a closet in New Jersey. And that over there is real-life lawyer Matt Cameron, who I think is probably in a better situation. How are you doing?

0:00:57 Matt: I'm alright, and much like Donald Trump, I will not be going to trial anytime soon, so feel pretty good about that. Probably ever, as far as I know, but yeah.

0:01:05 Thomas: Yeah. Jesus. That sucks. For both of you or just for you?

0:01:11 Matt: Have no reason to go to trial, he's got at least three pending, but just saying, we've got that in common.

0:01:15 Thomas: But apparently it's never going to happen. It's never gonna happen, Matt. We're never gonna get it. News. Is such important news. And the other thing we're going to talk about that I'm interrupting my trip to record this. And I don't say that to be bitter. I say that because that's how important the show is to me. Had And an episode ready, it was, of course, we recorded early and then news And then it was like, well, damn it. We really got to talk about this other stuff. So that one will be Monday's episode.

0:01:19 Matt: Hmm.

0:01:35 Matt: Happens. I hope you get your vacation, though. We can do this.

0:01:43 Thomas: I'm having a great time. I think I need, you know, it's like when an addict, you can't just cut them off turkey, cold. You know, you can't just, if someone's just drinking so much podcast per night and they're just drinking so much podcast editing or shooting so much podcast editing into their veins and then you're like, "Stop all of it!" They'd be like, "Well, no, they might literally die." Like, you gotta give them a little bit. So this is my fix. I feel better, actually I feel more relaxed doing a little bit of work than I would doing no work if I'm being honest. I

0:02:04 Matt: Sure. A TSA agent going through your bags and giving a very knowing look to Lydia as he pulls out all the accordion equipment, you know?

0:02:18 Thomas: What's this baggie of podcasts you have here? Sniffing, dog Yeah. But I, of course, brought a mic just in case. And I've got a little improvised setup in a closet with as many pillows as I could find in the house. And, you know, it's not ideal, but it's it's fine. Sometimes fun to do a little little different setting. So anyway, all that is to say, I'm excited to be here and record this extra special episode.

0:02:20 Matt: That's right. Yeah.

0:02:40 Matt: Same.

0:02:40 Thomas: And there is big news on this border executive order that I just very disappointed about. And really, I think, I think all of us listeners of OA need Matt's breakdown of what the hell this is, what Biden's doing. And, you know, we also need an update because of this Georgia news that is so frustrating that I feel like hit us a little bit out of the blue based on, you know, how we had talked about this before. So I'm happy to be here to cover all that. And

0:03:05 Matt: Same. To talk about this stuff. Let's do it. But had

0:03:07 Thomas: A Law'd Awful Movies. Make sure to check that out. I realize this is the second time we're doing this intro.

0:03:13 Thomas: So Law'd Awful Movies is out. That was so much fun. That's at patreon.com/law, and that is for the second tier of patrons and above. I hope you enjoy that. Matt and I gave our sanity for it.

0:03:24 Matt: A great time doing it though.

0:03:25 Thomas: It was the dumbest shit I've ever seen in my life. It was so bad. It is the most wrong per minute. Jury Duty with Pauly Shore, one of the worst movies ever made that we did, is a lot of movies back in the day might have been more legally accurate than this show might

0:03:37 Matt: Wow. I've never seen it, but that's incredible. Wow.

0:03:40 Thomas: That's how, that's How stupid this one was, it was so much fun though. It's the perfect Law'd Awful thing, so hope you enjoy that. And, oh, recently put out this second episode of Stormy Daniels on Gavel Gavel, and once again, reminder, because I get a email you or message every single day just to clarify, extra sure, we're still working on getting the public feed put it up. Uh, we don't have that yet, so sorry. Uh, if you want to listen, it's on patreon.com/gavelpod. But I promise we will get that up someday, I'm working on it.

There's just so much to work on. Um, okay, all those announcements aside, we'll pause for a quick break that you can avoid on patreon.com/law and then we'll get to it. Uh is this and matt was wrong because I mean I remember we did this Georgia coverage. It was a lot of fun. Casey came along for the ride. It was sort of actually a precursor to gavel gavel cause it was covering that inside the Georgia hearings. Um, and I remember that when, uh, Willis, when the ruling went the way it did, which was that, you know, that judge, judge McAfee, uh

0:03:41 Matt: Okay.

0:04:40 Matt: McAfee.

0:04:40 Thomas: Oh yeah. Judge McAfee. He went and they said, I rule that, uh is fine and we can can continue as long as one of you steps down. And, you Fonny Willis and what's his name, I think, looked at each other and they're was like, I'll leave. Yeah, that makes sense.

0:04:54 Matt: It It wasn't really a coin flip there.

0:04:56 Thomas: No, no. I wonder if he did any hesitation like, do you want to do it? No. OK, me. Yeah. All right. I'm out of here. And so I remember then I'm not to call you out too much, Matt, Matt, but you thought that perhaps Judge McAfee wouldn't even let an appeal happen somehow. Like, you remind us of that, what that was? There's a couple phases to this, right?

0:05:16 Matt: Might be a Matt was kind of wrong, or at least Matt guessed wrong. Matt might also not be a Georgia lawyer, but the certificate that Judge McAfEE certified. Now, I think he did this just to do it because the parties went back, because it's an interlocutory appeal. So obviously this is an issue that is in It's an issue THAT NEEDS TO BE RESOLVED ON APPEAL. So that requires a certificate from the judge in Georgia that says that this can proceed. So he did issue that at the request of the parties. It did go to the appeals court.

0:05:40 Thomas: So he has the ability to allow interlocutory appeals or not. Like he can put the hand. That's interesting.

0:05:44 Matt: That's right. Yep. In Georgia on this kind of issue. Yeah, leave to appeal. And he said when he granted that, that he was going to continue you on with pretrial motions, but it was pretty clear from the way he phrased that, that there wasn't going to be any major motion in the case because obviously if Fannie Willis were to be actually taken off the case, that throws things pretty badly and you can't have that happen in the middle of trial. It could potentially undo everything she's done in the case, I think. So it's really an issue. But so then one judge was just required to take it from the Georgia Appeals Court and that happened. Guessing they took it because it was such a novel issue and it was such an important case.

0:05:47 Thomas: Okay. Jeez.

0:06:15 Thomas: I'm going to say this is a Thomas was right. Because you were like, oh, this is done. This is not happening. I was like, are you telling me that we're relying on a single judge picked at random from some sort of Georgia level of court.

0:06:17 Matt: Yeah, no, it judge.

0:06:28 Thomas: That's important. Yeah.

0:06:29 Matt: I was thinking like a lawyer and you were thinking of the actual real political considerations, which are important.

0:06:33 Thomas: And that's why we're a team. And so hence the recent news that everyone has seen that seems to say, I come here for my law news, so I've only seen headlines, Matt, but it seems to saying, well, this trial is just never happening. It's it's over. Don't even bother. Go home. This is never happening because we will probably have fascism by then or not, but it's going to be a while. What happened?

0:06:35 Matt: That's right.

0:06:55 Matt: I got to say this is something that as somebody who does a lot of appeals, I'm not a lot surprised to learn. And then when I went and looked at the Georgia law that controls this, I Was not at all surprised to hear this happen.

But what happened was that the appeals court stayed the entire trial pending appeal of this So they're considering right now, they're going to have an argument on October 4th over this issue of whether Fannie Willis should have been recused or not, or should have had to get out of the case. And in the meantime, they've stopped the entire trial, which makes sense given, again, if they were to lose their minds and disagree with Judge McAfee, then that would throw the whole thing pretty badly.

So who knows? But for the moment, this is not catastrophic. This is not necessarily political hacks doing political hackery. And again, I'm not a Georgia lawyer, but I can look at the Georgia Appellate Handbook, which is a very helpful document for this sort of thing when you're trying to figure out what's going on in Georgia. And you go to look at interlocutory judgment, it cites OCGA 5634B, which

0:07:48 Thomas: I have memorized, but go ahead and tell them. Yeah.

0:07:51 Matt: The proper way to appeal from an interlocutor judgment, which they've done. They've completed everything they're supposed to do to do that, and it's been accepted by the appeals court. And at that point, the notice of appeal acts as a supersedeas. I'm not sure how to pronounce that, but that sounds like a Dracau-Malfoy kind of curse. A supersedeas.

0:08:08 Thomas: Someone, it's like a superseding indictment, but they cast it in Harry Potter world kind of thing. Supersidio.

0:08:11 Matt: But it appears to me, and I've seen other Georgia lawyers saying this, that it's pretty much automatic and it's very much expected that on a criminal appeal, when you're appealing an important interrogatory issue, that the trial is going to be stayed, which only makes sense. I mean, if the judge thought it was important to certify, then it probably should be reviewed before you go forward with an entire trial. So I wouldn't worry too much about this being anything other than just standard court procedure. I really wish they hadn't taken it because obviously we could have actually had a trial before November if they had done that. That's just not going to happen now. No.

0:08:23 Thomas: Yeah, yeah.

0:08:44 Thomas: All that understood. It's an obvious enough issue, like let's say it's not this, although this seems obvious to me. But let's say it's some other thing, because I know, you criminals don't get this kind of treatment. Now, is it a matter of resources, or is it, like, is Trump were just Joe Public, who is actually probably minority and accused of drug charges or something, if he's just run of the mill average person in the criminal justice system there in Georgia and he tries to do something like this, what happens? Does the judge just say, "I don't, I'm not authorizing this because no one cares about this because it's not a high profile trial of a president and his cronies"? Is there some way, is there's a mechanism that the appeal court can be like, no, real quick.

0:09:26 Matt: Such a unique circumstance because it involved a special prosecutor. I'm trying to think of an analogous situation in somebody you're describing, like a defendant with appointed counsel. But if appointed counsel had all the information that the Trump team had, I could see this motion getting somewhere and possibly getting somewhere in an allocutory appeal. I don't know. Of course, this ist a very special circumstance. Everything's happening differently because the world is watching it. So it's really really hard to compare it to anything else.

0:09:41 Thomas: Hmm. Fair. So if so, and like we've talked about in evaluating this case and the what's going on, like we've talked about with Casey, what, I know this is a unique situation, but the idea of a prosecutor having some sort of conflict of interest is not, entirely you unique. Like, so if if the prosecutor is, you family members of a victim or something, And defendant appealed and said, "Hey, this is a conflict of interest." Interest, do you think it would kind of go like it's going now with Trump, basically, or not? That's kind of what I'm getting at. Like, how is he being treated and how is this being treated relative to how maybe a normal situation would be, if there is such a thing?

0:10:09 Matt: Sure.

0:10:25 Matt: Valid claims against prosecutors of this kind are pretty rare, as far as I know. I mean, it doesn't make the news a lot, and I certainly haven't seen very many. There was one, and very famously here, where there was a sexual relationship between a prosecutor and, I believe, a defense attorney or somebody at the defense attorney's office. That kind of thing obviously merits emotion. It's going to get you somewhere. Pretty unusual stuff.

0:10:43 Thomas: This isn't really valid either, is it?

0:10:45 Matt: No, I'm not saying it is. I'm just saying that But worth looking at. I don't think, I haven't thought from the beginning, but when you hear those allegations, when I first read that motion, I thought, well, somebody's got to have a hearing on this because these things are, it is a serious allegation. Potentially there was sharing of money. There's something else going on there. It made every sense for McAfee to hold the hearing. I think it could have been two days shorter, but it you know, but I don'T, looking at the evidence, after hearing from everybody, I don't think it's all that meritorious. You Know, the court's still going to review it because there's a lot of record to go through.

0:10:46 Thomas: Okay. Yeah. But But when you're talking about appeals, if it's like a close of enough call that you had to have a hearing and look at it, then I guess that means the appeal is something valid to do and so ultimately this trial is delayed by quite a bit and for sure is not happening anywhere near before the election. Yeah.

0:11:14 Matt: Mm-hmm. Right. Yeah. And it's a pretty unusual case. So, yeah.

0:11:31 Matt: No, I mean, if we have oral argument on the 4th, that means we don't get a decision until after the election, guaranteed, no matter how much they're going to expedite it. So that's, 4th. Sorry, I Yeah, it stayed until judgment, obviously, but we hear more about what's going on with this appeal on October fourth. I'll try to check out the briefs, maybe we'll be talking about it, but, uh, did want to point out a, a bit, small bit of good news, which is that, uh, Trump and his eight co-defendants who brought this motion, who are included in this, disorder the other co -defendants I believe there's 10 others, are still going to go forward, so we might learn some things in the process we might, might get some evidence and interesting, you know, things might come out about that could be useful election-wise. So it's not totally lost.

0:11:37 Thomas: Fourth? When October 4th.

0:11:58 Thomas: Oh, wow. Oh. Wait, let me ask about that. Was it going to be all one trial, but now it won't? Or was this already two different trials or multiple different trials?

0:12:07 Matt: No, I think the, from what I understand,

0:12:14 Thomas: Else?

0:12:14 Matt: I mean, it's, it's a case. There's a lot of different stuff going on. I know that these defendants were all together. That's all I know. But there I know, that the other 10 defendants are not included in this motion, did not bring it with them. There were a lot of different things going on, obviously, during this scheme. So they have their own things to account for.

0:12:29 Thomas: Know, I remember it was the kind of thing where it's like the prosecution kind of wants it all together for a lot of reasons, but also, when you're doing a RICO case, it helps to, I think, have everybody in the room. It kind of makes, drives the point of conspiracy home, maybe, further for the jury. I think, I, I remember somebody making that point. Um, decides whether or not they do the trial for half of them and not for the other half. Is that that automatic, or is that the kind of thing where they could still decide, like, well, let's just hold off the whole damn thing for this appeal? Okay.

0:12:35 Matt: Sure.

0:12:56 Matt: There's nothing to hold them right now because they weren't part of this motion. So, you, as far as I know, I think that it can go forward. It really is. I mean, the prosecution can find ways to delay if they want to, I guess. But I really don't know that much about the rest of the defendants who have been focused so much on Trump and the close people in this. So I can't really comment on that. From,

0:13:10 Thomas: So, so you would expect that their trial is either, if it's a trial or trials, will, will go on, or

0:13:17 Matt: There's no reason that these, these trials shouldn't go on, because it only stops these prosecutions. So, for what that's worth, you know, more pre-trial motions, more evidence, more discovery, or whatever else might be coming out, and maybe some trials, who knows, we will see. Keep,

0:13:20 Thomas: Wow, okay. Well, that'll be interesting to pay attention to, for sure. Yeah, all.

0:13:30 Matt: A watch, sure.

0:13:31 Thomas: Go to the main story, uh, which is this border executive order that, uh, you just, go, there's no way for me to introduce it, that is meaningful, other than I saw this headline, I hate it, and how much should I hate this? Right.

0:13:36 Matt: Well, You know, obviously, I just, to remind everybody, this is a lot of what I do all day. I do a lot of asylum law, I think about immigration policy, I teach immigration policy, and this is not a surprise to me. Nothing about this is surprised to me. And in fact, as we're going to talk about, a lot of this has already been in place in a way. Let's start at the beginning.

Just a point I want to make at the beginning, which is that presidents have wide latitude to act on immigration when Congress will not act. And I just want to contrast the difference between 2012, which was, of course, an election year. In June of 2012, Obama stood up and said, well, Congress, you know, for the whatever time, I think by that time, it was the fifth or sixth time, was not able to pass the DREAM Act. The DREAM Act is incredibly popular.

Like, eight out of 10 people want people brought here as children to to be able to have a place to stay here. Barack Obama said, I'm going to act independently. I'm gonna create DACA, Deferred Action for Childhood Arrivals, and I'm wanna give people this protection so they don't have to be deported on my watch. And this was a very popular thing. It provided protections to over a million people, and many, many people are still benefiting from it despite all the efforts to end it. And, this,

0:14:18 Thomas: Yeah. Wow.

0:14:39 Matt: To me, I will just say without too much comment, is what a Democratic president should be doing in an election year, providing protections and and showing a better way for things. This is the first time of which I'm aware the Democratic president has used an executive order for immigration not to protect people. And this, 12 years later, in the summer of 2024 in an election year, we have a Democratic president who is stepping in when Congress couldn't pass a very restrictive border bill, and he's doing it himself.

He's trying to do it himself .He's not going to be able to do very much, as we'll talk about, but he is picking up where Trump left off, and potentially he's going to to be handing Trump, if Trump, I don't even want to say it out loud, but if we end up with more Trump, then Trump will be handed the keys to yet another beefed up border machine that is ready to go. And I'm very concerned about all of this, but I'm not surprised.

And I want to kind of take you through why this is not surprising. Order came out June 3rd, so we're still processing it. There's an associated set of rules. Let me just explain what it is before we get into it. There's a proclamation. Presidential proclamation is not even really an executive order. It's just sort of, it's what it sounds like. It's just standing up and proclaiming something. The proclamation said that he had authority to pass a rule, and the rule itself is the real meat of it. That's 194 pages.

0:14:54 Thomas: Wow.

0:15:47 Thomas: This

0:15:47 Matt: That proclamation was based on INA 212F, which is Immigration Nationality Act 212f, which has a very broad provision. And, that provision, just to read it out, the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens, as immigrants or non -immigrants, or impose on the entryof aliens any restrictions he may deem to be appropriate. So this is a very, very broad provision.

0:16:20 Thomas: Sounds familiar. Was this used to stop it during COVID, like, because it's, you of transmission of disease, oh.

0:16:23 Matt: You're thinking of Title 42, which is a public health, and so this is trying to do, and Title 42 is even stronger because it is such a broad and strong provision. It actually was able to turn people away at a a much more dramatic way than this will even. 212F is actually the basis for the Muslim ban, unfortunately, and it was upheld by the Supreme Court as a valid exercise of the president's power as a security thing. And was also the basis of an order in 2018, which was almost identical to this one. And that's one thing I want to start with, is the fact that Donald Trump already did this. He did almost exactly the same thing of what I'm about to describe. And there's... there's a statement here from November 8th, 2018, when I was going back and looking at the history of all this and remembering these times, because of course I was riding this roller coaster the whole time. The statement, the joint statement from Matthew Whitaker, the attorney general at the time, and DHS Secretary Kirstjen Nielsen, you could copy and paste into what Biden saying now, except

0:16:27 Thomas: It's different. Okay. Huh.

0:16:54 Thomas: Oh. My god.

0:17:18 Matt: That Biden is saying it with a little more love. Let's actually just listen now to how Biden is explaining himself. Off.

0:17:18 Thomas: I

0:17:24 Clip: Believe that immigration has always been a lifeblood of America. We're constantly renewed by an infusion of people and new talent. The Statue of Liberty is not some relic of American history. It stands for who we are as the United States. So I will never demonize immigrants. I'll never refer to immigrants as poisoning the blood of a country. And further, I'll not separate children from their families at the border. I will not ban people from this country because of their religious beliefs. I will use the U.S. military to go into neighborhoods all across the country to pull millions of people out of their homes and away from their families to put detention camps while awaiting deportation, as my predecessor says he will do if he occupies his office again.

0:18:10 Thomas: Even though he's essentially, from what you're saying, enacting an executive order that's very identical to something Trump did, he's saying he's not doing all these things that Trump did do, which I don't know, maybe fair enough, or what?

0:18:22 Matt: Well, that's true. He's not separating children and he's not going out saying that that he's immigrants are poisoning the blood of America, but it's the kinder, nicer way to do exactly the same thing. I want to talk about what that thing is. Yeah? As we get into it. And so you can see what I'm talking about now, again, I agree with you. I'm disappointed. This is what I expected. So I'm not as disappointed maybe as other people might be. I understand it's an election year. I understand that this is the single biggest issue for Joe Biden right now.

It's the one thing that Donald Trump has been running on for, you know, since 2015. is not what I would have done in his situation. And I think it's going to not survive a legal challenge because it already hasn't survived a legal change. But I'm getting ahead of myself. So let's look at what this thing actually is. This proclamation and the associated interim final rule of 194 pages. Meat of it, the most important thing you need to know, is that it reinforces something that Biden already did last July. And this is one of those things, when I look at the headlines, I'm like, did the media not understand that this is already in effect? This has actually been effectively a less forceful version

0:18:31 Thomas: Yikes. Wow. Yes, Matt, I will answer that question. Yes. The media did not understand that.

0:19:17 Matt: Of this. They did not. Yeah, no, I guess

0:19:19 Thomas: You're the only one who understand. You and some other immigration attorneys are the only ones who actually understand anything that's happening with this, but now our listeners can as well.

0:19:19 Matt: Not. Yeah, it's probably true, unfortunately. But because I want you to understand that this did not come out of nowhere. This was a building momentum kind of thing. But but there's something called the circumventing lawful pathways rule, which is the basis for this, the foundation for what they're expanding on. Now, the expansion and everything that's going into this rule is much worse and has some other things I really don't like. But the fundamental thing that you're hearing reported, first of all, media headlines about how he's shutting down the border or closing the border, that's obviously insane. I think we know that. You can't do that.

0:19:55 Thomas: Oh, it is. Hey, I need to know that Matt. Cause I don't, that's every headline. I'm hope like, you'll understand how misled or just, I guess, misinformed the public is on this. Uh, that'S important to say. So he's not shutting down the border. That's

0:20:08 Matt: That's not a thing that a president can do.

0:20:09 Thomas: That's every deadline, Matt. What? Okay. You tell me, but remember that pretend I'm an infant and you're trying to explain if you

0:20:09 Matt: Yeah, Yeah, I know. Sure. I just thought that was so obvious. You can't shut down the border.

0:20:18 Thomas: Could use little dolls or action figures that would help too. Like these people are trying to get over here and these people are rich and have a bunch of money and want to demagogue them to keep staying in power. You know, that kind of lecture I give to my kids.

0:20:21 Matt: Right. Right.

0:20:31 Matt: There's not a giant lever in the White House basement marked border that he gets to throw. I mean, that's not really how this works. The is that he's officially saying that people who are coming without permission or coming over the border can't to apply for asylum unless they come through a port of entry while the CBP1 app, which I think we've discussed before, but it's kind of a buggy app. It's got issues. A while, it was having a lot of trouble recognizing people with darker skin.

I've heard a lot trouble with people trying to use it, and there's only so many slots available every day. People become very frustrated because they've had to wait for months and months in Mexico, and a lot people have been crossing. You do not cross in this way, using this app that allows you to register essentially potentially to begin an asylum process, then you will be turned around. That's what they're promising.

And the only exception will be if you have exceptionally compelling circumstances, which are basically an immediate medical emergency if somebody is threatening your life, you're being severely trafficked. Or, and this is where it starts to get kind of weird, you ask them and you say that you have a fear of persecution, there's some reason that you're afraid to go back and you say the magic words. Now, it used to be that they were required to ask ask as people were being processed by immigration.

Is there a reason that you're afraid to go home to your country? Do you fear persecution or torture in your home country? And there are pages and pages in this and also in the associated ICE memo, which has recently been leaked that explain that the migrants have to affirmatively ask. And now this is just kind of a weird game because there, the rule is going to require signs to be posted that they have the right to ask for for things like food and medicine.

And also, by the way, you have the right to ask if you're afraid to return to persecution and torture. There's also something that was kind of darkly funny. Any location where it is possible to show to non-citizens a video, the video provided explaining to noncitizens that they should raise these concerns should be played in a loop. May be played with other videos, but

0:22:09 Thomas: Wow.

0:22:09 Matt: Should be shown no fewer than once every two hours from 7 a .m. until 7 p .m., on a daily basis. So you're going to have that video memorized. I'm sure that's going to be a little five -minute clip, like the one that you get when you're coming to the international terminal, the DHS secretary telling you about welcome to America, except it's telling you if you're afraid to go back, you have the right to raise this. So it's just kind of this weird dance where the officers won't be asking them anymore. The is that 212F, the Supreme Court has already found, and the previous judge that reviewed the Trump case already found 212CF cannot supersede asylum law. And the Biden administration acknowledges that in the rule. They say it clearly. They know that. They're not stopping people from applying for asylum in the United States. Official position is, and just really get your head around this one. They've already tried this with Judge John Tigar in San Francisco, who has been reviewing both the TIGAR.

0:22:51 Thomas: John Tiger. Wow, wow.

0:22:53 Matt: Yeah, he seems like a good guy from what I've seen. Reviewed the 2018 challenge, both brought by the same plaintiffs, the East Bay Sanctuary. 2018, they were making the same argument, and they made it again in 2023 with lawful pathways rule, which amounts to the same thing, that you can't asylum if you came another way. Actual argument was, well, we're not keeping people from applying for asylum. We're just saying that they're not eligible. Skirts the law enough. And it's an absurd argument, obviously. Right.

0:23:16 Thomas: I know I apologies that I'm going to make you repeat yourself, but I want to make this is, Kafka this -esque and I Want make sure I actually understand it. So apologies if the listeners were like, "I got it, Thomas, you're an idiot. You were lost focus."

0:23:22 Matt: Yes. No. No.

0:23:28 Thomas: Because you're in a new environment and trying to record, uh, you're saying that, and that's, wait, is this one of many things this executive order slash rule thingy is doing, or is this like the main thing?

0:23:29 Matt: So. So. Asylum ban is the main thing. It's cementing this thing that basically already exists, um, that's the main part of it, that's the part you're hearing about when you're talking about stopping asylum. There's a bunch of other little stuff that's very important that we'll talk about after this, but

0:23:38 Thomas: Oh.

0:23:48 Thomas: Is this the part that also was already happening essentially, so Okay, so the key is that, um, have said, or this, this Tigar judge, this Judge Tigar, he said the, it's been the, the rule that you can't just have this, uh, supersede asylum law, so what they're doing instead of that is saying they're finding these other ways, like border patrol won't, like, give you a prompt to help you out with this, and what, but what's this eligibility you're saying that they still, so if someone comes in and it's quote unquote, quote, not the right pathway, which, can you reiterate what you mean by that?

0:23:51 Matt: Right.

0:24:20 Matt: Either obviously going with a visa or making an appointment if you want to apply for asylum with the CBP-1 app. And that's the only way at this point. And, that's, that's a major difference between, because the Trump rule didn't have that option. So Biden is saying, look, we, we've released providing something as along with the parole programs that I think we've discussed before, but those are only for certain countries and they're pretty limited. Do have at least on paper a way that could be done, but a lot of people aren't able to do that either.

0:24:26 Thomas: Right, the app, okay.

0:24:41 Thomas: So This rule is saying if you don't do that, you're not eligible for asylum, but That can't actually be true, it's just that they're not, they're like, they're finding a way to kind of not help them apply, or they're not, like, what's that part of it, how are they getting away with this?

0:24:45 Matt: Right.

0:24:54 Matt: The executive's position is that they have full authority to determine eligibility for asylum, interpreting the laws as they will and setting rules and policies for that. Argument to this Judge Tiger in both cases was that we're not restricting people's ability to apply for asylum, which is what the law is concerned with. We're just restricting eligibility. So we're just saying you can apply all you want, but, you knows, door's closed.

0:25:14 Thomas: And then we say denied because you weren't eligible.

0:25:17 Matt: Yeah. Yeah. Judge obviously found that was ridiculous. And he pretty much said that in in the decision and on the record. And by the way, that, he killed it. That was eventually it was, was enjoined and stopped pretty much right away. It the summary judgment and the 2023 one, he enjoined it. There And was it an injunction in place for a while. The Ninth Circuit actually overturned that injunction. Supreme Court upheld that.

0:25:37 Matt: And so that, yeah, that lawful pathways rule has been in effect since last July, I believe. Yeah. So Yeah. Two to one on whichever judges those were. Let it go forward.

0:25:37 Thomas: Wow, oh wow, by the Ninth Circuit too.

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0:27:12 Matt: Trump v. Hawaii, which was the big 2018 case on the Muslim ban, John Roberts kind of in passing in dicta said that pretty clear that you can't use 212F to override other parts of the INA. And again, they say that in this memo, in this rule, they acknowledge it, but they don't provide a lot of authority for why they get to do what they're doing. They're kind of stitching together a lot other authority to try to make this work. And I think they know that this is going to be challenged immediately. ACLU is already working on it. I think, they know, that it doesn't have much of a chance in the end.

0:27:37 Thomas: But I thought you said this effectively was already in place.

0:27:38 Matt: It is. It I think they know just like with so many of the Trump things, they can put it in place. ACLU will stop it. There'll be an injunction. Then Biden will be able to say, I tried.

0:27:47 Thomas: My confusion is already happened, but then you said the Ninth Circuit was like, no, this is cool, and then the Supreme Court was like no, this is cool. So I thought the current state of this was for this particular thing, this is the 2023 thing that says, and again, just to make sure straight on what we're talking about. This is the, if you don't use the app or these other methods, you're not eligible in quotes, even though you can't technically still apply. But you're saying that's was the the state of things already becauseof how the, it went up through the courts.

0:27:54 Matt: Right, right.

0:28:13 Matt: And that's still on appeal.

0:28:14 Thomas: Oh, okay. That's where, okay, so that's still an appeal. Okay. So it was about letting like it happen while on. It was one of those ones where it's like, OK, we're going to let it go into effect, but it's still on. That doesn't mean like, oh, it's finalized and it's fine. It's it's all good. It means we're letting it go Into Effect while it's under appeal. Sort of like they did with, before you Roe v. Wade was struck down. They're like, well, you can restrict all abortions if you want for now while we check on this. And it's Like, OK. So that means no more Roe. So it's kind of like that. And you're saying, but does this new executive order give the ACLU et al another chance to kind of freshly try to enjoin this?

0:28:19 Matt: Yeah. Right. Exactly.

0:28:54 Matt: I do. I think it does. And I think they're going to be right on it. Especially because they're leaning more on 212 for this one, from what I can tell. That wasn't really the basis of the previous one. And I think that's problematic because 212 is supposed to be for... I mean, the language is so broad that you can designate a class of aliens and the class that he's designating is people basically coming over the border trying to seek asylum. You can't, I mean, that's not the same as if there's like airborne Ebola or if Al-Qaeda takes over Mexico.

0:28:56 Thomas: Okay. Okay. Yeah.

0:29:19 Matt: Or something, right? I mean, it's like you can see situations, or maybe you'd have to say that everybody from this country for the moment, and which is what Trump did, obviously the Muslim ban, uh, come, but situations.

0:29:26 Thomas: Yeah, just anyone who might seek asylum, that's like so many different people from different places for different reasons.

0:29:32 Matt: That's right, uh, now to be clear, this is, I shouldn't say to be clear, because none of this is clear, I know this is very confusing, I'm really trying to break it down.

0:29:37 Thomas: No, it's not. I'm really trying. I hope I'm not holding the audience back too much because I'm having a hard time with this. Hmm.

0:29:41 Matt: No, no. Again, this is my expertise, I do want to slow down and make sure that I'm not getting ahead of anything. But when I say asylum, I'm going to just break this down for a second. There's also related relief. There are a couple of things that I call asylum light, essentially, that are protections that keep you here but are not full-on asylum. They don't give you a path to residency or citizenship.

They're basically just permission to stay here because we recognize that you've got a bad situation, situation. Under international law and under our own law from 1980, we still have to let you do that. And that's why if you ask for protection, if you watch the video and you decide that it applies to you, you get a right to an interview with an officer and they get to decide if maybe you qualify for withholding of removal or CAT, Convention Against Torture Relief. Again, those are not asylum.

Those are like asylum, but I just want to make the point that those systems are still in place. Those international protections are still there. So If you have to have a pretty strong case, and because the Convention Against Torture, you have to be able to show that either your government's going to torture you or someone is going to torture you and the government's gonna let it happen, like in a very blatant way. Like they're just literally gonna turn

0:30:29 Thomas: Jesus.

0:30:40 Thomas: Yeah.

0:30:40 Matt: A blind eye. Withholding of removal is a much higher standard than asylum and again it doesn't get you residency and citizenship. But that's another sort of nuance to this is that when we're talking about asylum, we're always talking about asylum and related relief, right? Is what you want because it's the gold standard. It's the one that gets you residency and citizenship, and it's easier to prove. Asylum, essentially, the Supreme Court has said, comes down to a 1 in 10 chance that something bad is going to happen to you, whereas withholding of removal is a 51% chance. I don't know how you're supposed to get to percentages when you're talking about persecution and torture, but that's the way they look at it.

0:31:08 Thomas: Let me ask my torturers, hey, are you like coin flip on this, or yeah?

0:31:10 Matt: Yeah. Right, yeah, right. So just to finish on that thread, interviews are going to be governed by a different standard. That's another piece of this, is they're going to raise the standard to a reasonable possibility standard. That is much higher than it's been before. And this gets really confusing because there's so many different potential standards that are floating around. We're going have a guest on at some point to talk in depth about all of this because I really don't want to shortchange some of these legal concepts.

I just want to get through what's in here now. But that's another thing to know is that we're still preserving these other backup, up sort of safe harbor options, but we're raising the standard to make it harder for them to get. Also know from a memo that was leaked that was obtained by Taylor Levy. And I want to just plug Taylor real quick, because I think one thing we can do on this show is highlight awesome people who are doing cool things by themselves.

If you want to give the ACLU money, that's an option, you can do that. But the ACLU is very well funded. Taylor is one person, and she's doing amazing work on the border by herself.

0:32:04 Thomas: Is this, yeah.

0:32:05 Matt: She's one of my immigration law heroes, and she gives her time, uh, a way that's really unique, and she counts on donations, so I'll tell you about how to do that, um gonna be very busy these days, she already is, and she works really hard, and she's helped me, even just talking to her, understand things that I didn't, she's, she's on the border, she has a much better understanding what's going on down there than I'm going to, and if you want to send her a few bucks on Venmo, uh, is actually Taylor, as in Swift, K, as in kangaroo, Levy, as in Eugene, it's Taylor K Levy, you send her a Venmo or Cash App, and that's straight from her website, um

0:32:12 Thomas: Yeah, people Is this just giving someone money, or is there any tax deductible, whatever, I mean, people often wanna know that when they're donating because

0:32:36 Matt: Is She works with a number of foundations, but from what I understand, she does not have her own, uh, non-profit, but she is essentially funding her law firm with donations and grants, which is incredible, uh, it's a real, real life goals kind of thing for me, uh but

0:32:45 Thomas: Yeah. I'll put that add in the show notes and, uh, uh a donation myself, that's amazing, could

0:32:49 Matt: She obtained this memo, and it is really eye, eye -opening because telling ICE to be expecting and how to carry this order out. And one thing that really caught our eye, the attorneys, when we looked at this, is that they're reducing the time that you get to consult with counsel from 24 hours to four hours. And that clock starts pretty much as soon as you're told you're going to get an interview. You have to call somebody like Taylor, and you have to talk to them real quick and try to make sure you understand what you're doing. And so that's what we're doing here. And that's going into in this interview. And that's very stressful and very unlikely to work for most people. Most people getting her, I have no idea how to call anybody.

0:33:18 Thomas: We talk to Taylor, could

0:33:20 Matt: We probably should. Sure, we can get her on. Shouldn't be any trouble. Was just really appreciating, you know, when she released this. It's just the kind of thing that one person can do and I'm always trying to promote one people kind of operations. So that's distressing though that they're cutting down severely on the right to counsel. But the other major difference and the thing that you've heard uh I think plugged about this this particular order is that it's got this kind of ridiculous framework where they're they're pretending like it's temporary and they're pretending like it's going to de-escalate at some point it reminds me a lot remember the homeland security warning system with the colors right how it was like you know it's like it and of course it was always yellow because they don't want to freak people out and make it red but of course I don't want to say it's green because it's never green

0:33:31 Thomas: Yeah. Yep. Yep. Or Some Weird Color, yeah, it was always something. Uninterpretable Color, yeah. But It wasn't zero, there was never a time, time when they were like, yeah, everything's cool.

0:33:59 Matt: Yeah fuchsia yeah right yeah uh and it's still yellow, you know, be careful, but it's not based on anything. I mean, you can't, like, it's such a weird thing to have an objective number about, right?

0:34:13 Thomas: Matt, it's based on how much the right is demagoguing. It's not based on like any sort of metrics that have any impact on anything really. It is like, well, how mad have Fox News whipped people up about this thing? That is our terrorist alert system and That is the stupid world we live in. But it strikes me that, well, we can talk about this at the very end, but this feels very just purely election-y to me based on what you're saying, right?

0:34:16 Matt: It's true, yeah Yeah Yeah It Does, because, you, it is honestly, there is a real political genius here in the sense that he is taking the Republican's bill that we talked about before, that Trump would not allow them to pass in an election year because Trump wants as much chaos as possible. And then he wants to pass the bill and take credit for it. So Biden's like, sure. Well, I mean, he stood up and said, Congress couldn't pass this, but I know I think you got some good ideas here, so I'm going to do it. One of the things he picked up was that these provisions, the blocking this way goes into effect when there are more than 2,500 encounters on seven consecutive days. So again, 2,500 encounters for seven consecutive days. An encounter is not necessarily one person. An encounter could be one person who comes through several times in a day, or maybe you get a group of 10 people that are returned, and then they come back. That's 20 encounters.

0:34:51 Thomas: Per What, per the whole border? Yeah.

0:35:21 Matt: For the whole border. And right now, there are 3,800 average in May daily, which is pretty aggressively down. Sure, you heard the numbers before, but we were getting massively more than that, more than twice, sometimes three times as much of that some days the last few months. One of the main reasons it's gone down, at least according to Biden, I think this is probably true, is that they have been working very closely with Mexico, which is a nice way to say pressuring Mexico very hard to do their own enforcement and turn people back at their border and make sure they never get here. So that's part of the piece here, the part we don't see. So that's kind of the whole picture of basics anyway, talking about sort of strengthening a rule that they've already tried, which again, I don't know why they didn't get more coverage. I think, well, I know why it didn't get more covered at the time. It's hard to explain. It's very hard to say that, like, well, you're not going to apply for asylum.

0:36:04 Thomas: It Is I'm, I'm already struggling even having an expert here explain it to me And

0:36:06 Matt: Right. Sure. But that's, this is one thing just that I want people to know is that there was a version of this in place and that it was already making issues. But all around, picking, they're a lot of the different things out from the bill and trying to make them into an administrative rule. And as I said, the president has more authority over immigration than pretty much anything else. We've been seeing every successive president have been trying different ways of trying to get around these things because Congress can't do anything. We haven't had major immigration reform since 1996. Is what's going to happen is if Congress can't do it. But I will say, if they were up to me, and if I were the king of immigration, I were advising Joe Biden, which I'm really glad I'm not, honestly. This is obviously quite a morass. Would focus on another thing they've been talking about, which is guaranteeing that people married to U.S. citizens have the right to get residency without waiting for six or seven years. Think that would be really nice because it's Yes, marriage.

0:36:53 Thomas: That feels like an issue that the right wouldn't really, I Mean They'll do everything on that, that would be a tough one for them to be like, ah, the ISIS is coming, coming in, they're marrying our women and There's something like that, I don't think that would really land as much as this border ship lands, that's the problem, that's why we're here essentially. I don't, I, I really want your take or pushback or anything on this, because again, this is so complicated that I don't know that I have a firm grasp of this, but from what you're saying, it doesn't strike me that Biden's the kind of person that if it was silent and no one ever found out about it, he really wants to like get one over on these immigrants trying to come across the border.

Like, it doesn't strike me that he's out there to do that. Now, that again, get me wrong. It doesn't mean that that means anything he does is fine. I'm not saying that.

But what I am saying is, is it more accurate to look at this through the lens of, well, this is a bullshit issue that the right has successfully demagogued to where, when you look at polling, it's a major issue somehow for like way too many people, to the point where Biden, who is already at a disadvantage in the polls. It's hopefully trending up, but like no guarantee of him winning in November whatsoever in my mind at all. I mean, this

0:36:59 Matt: Yeah. Right, yeah. Yeah. I No.

0:38:04 Thomas: Is as coin tossy as it gets.

0:38:06 Matt: Certainly.

0:38:06 Thomas: Is it more accurate to look at this through the lens of this is to be something he's doing to try to hedge up an issue for election versus if, if it was more of a pernicious thing where it's of ways this is going to suck that we don't even see, which is like lot different. You know what I mean? Like when Trump did something wrong, often we saw some of it, but then there was also these little behind the scenes that were like, they, they want to make things terrible for immigrants. So they're, they're constantly working in ways that we don't see, you know, I don't know if that makes sense, but like, what lens does it make more sense to look at this through in your mind, knowing the details that you know.

0:38:41 Matt: Mean, I don't, I'm going to give you sort of what I think, the, the way I've been thinking about this for a while, and the way that a lot of immigration policy people see it, especially on the left, which is that there's not a lot of difference in actual details between the way that Republicans and Democrats have been handling immigration for the past 30 years. And this is, now Joe Biden is an old school Clinton era Democrat and was very involved in passing the 1996 reform, which I think as I've mentioned more than once one reason our immigration lawyers really don't like him.

Know, I don't have a problem with the man personally, but he's taken some responsibility for this, but that law, the 96 immigration bill, is one of the reasons that so many U.S. citizens married to immigrants are not able to have them be in their lives right now. It's something that I think everybody would assume is very easy to do. It's very, very difficult, just to name one example. And that's just one of many, many things in the last time that we reformed immigration that Joe Biden helped get over the line in the Senate. It. I think that when he talks about enforcement as he has, he's talking very much the way that Clinton did, and I think he means it. He really does want to see border enforcement. I also believe him when he says he wants to do it with love, but I don't know if it matters. I mean, to

0:38:58 Thomas: Yeah. Yep. Yeah,

0:39:45 Matt: Me, and actually, we should play Trump's reaction to this as well, now that we're talking about the politics of it. Trump got very upset by this. Let's just play the first 25, 30 seconds.

0:39:46 Thomas: Hmm. Well, and especially to tack on to that point, though, no matter how much with love that Biden wants to do any of this, the that actually does anything is ICE or Border Patrol, you know, like that don't do anything with love. So, I no, I'm agreeing like it's yeah, It doesn't, even if, like, you wanted to fully grant the best of intentions, it's Not as though Biden is the one, you there on the board, like a bunch of lovey, uh, are down there, do it like this, enforcement gets done by people who largely, uh, are terrible to immigrants, right?

0:40:03 Matt: Yeah, yeah, I'm not saying that. I'm just saying that Democrats do it, you know? Yeah, right, right. Right

0:40:26 Thomas: I

0:40:26 Matt: Yeah and he gets to say in public that I'm, not using racist rhetoric, I am not separating families, although he actually is and I get it. I understand that sound it, better than Trump, you certainly look better than Trump while you're doing it. But this is the same policy, and it's actually even beefier than the Trump policy. Let's hear what Trump had to say about it.

0:40:43 Clip: What do you think of what he did today?

0:40:56 Thomas: Another hit? What does that mean?

0:40:58 Matt: Really mad because Joe Biden went and did the thing that he told Congress not to do. And it's just very funny because at the end of the day, everything has to come down to how it personally affects Donald Trump. That's the only metric that he has in his life for anything. So clearly this was targeted at me personally, not at millions of people that want to come here.

0:41:11 Thomas: Yeah. Yeah.

0:41:18 Matt: That is why he Mike Johnson and the Daily Wire and Glenn Beck don't care. They don't, they're not giving him any credit for this. You know, Mike Johnson says too little, too late. You know all these outlets are talking about how it's a sham and it's just political and whatever. Like this is another sort of classic.

0:41:19 Thomas: What an asshole. Yeah. Mike Johnson says too little, too late, even though he was the one who, because Trump said, don't do the reform at the last minute. He's like, okay, I won't. And then he's going to come criticize too little too late. That is unbelievable. The level of hypocrisy that they just get away with. It's just because it, man, that is incredible.

0:41:36 Matt: Right. Right. Yep. Exactly. Yep. Yeah. Oh no. It's this, gave a little speech about how after we couldn't pass this because Trump told us not to. Biden stood up and said, well, there's nothing else I can do. And now, 200 days later or whatever, now he's saying he can do something. Well, where was he before? I mean, come on.

0:42:03 Thomas: Oh, okay.

0:42:03 Matt: I don't fundamentally recognize the necessity for this. So it's a little hard for me to care that much about it as a political issue. But I to think about who this is for, right? Because obviously he's not going to win MAGA people. Maybe some Trump -hitting Republicans, maybe we'll see that he's trying to do something on the border. People who really really care about that issue. Maybe moderate Democrats in blue states will be more motivated, you know, people, but, yeah, sure.

0:42:06 Thomas: Unbelievable. Unbelievable. Yeah.

0:42:27 Thomas: No. Yeah, I think it is. I mean, even what's his name? The senator who beat Dr. Oz talks about the border and like like the border being a problem is unfortunately, again, line that even centrist Democrats are are And saying, yeah, there is a problem down there. And so honestly, as much as I hate this, you hate this, don't know that in like my heart of hearts, I don't know that this isn't the right thing to do to win an election. I don't know. I mean, maybe it's not.

Can tell you this, the and I say that as someone who's, would I consider myself a leftist, but the leftist who don't want Biden to win, anything like this as though this is finding an excuse to support Biden, where for me it's no again alternative is worse in every single way, even if you wanted to say on this issue they were the same, like and and maybe you're like that is kind of a point you're making, like it, maybe effectively maybe it's the same, and I'll grant that, yeah, if you're if you as an expert are someone I can trust are telling you that, that sucks and I hate it, um, if true, that one issue out of a million that Trump is a thousand times worse on.

And the only thing to do is to prevent that harm coming, is necessary to win that election, if this will help to win the election. I suspect that the reason they're doing it is because they think it is. And there's some polling and some Rust Belt says that this might make a difference on the border. And that very well may be true.

And I do, that I feel like a lot of people don't, is I separate my strong feelings on this issue and what I want for it from the, I think a lot people take that and say, well, because I want this issue to be a certain way, I must also make it true that it's better electorally if he does what I want him to do, that's not the case.

We in a stupid system that comes down to a couple of states that are toss-ups, and the things that appeal to those marginal voters in those couple states are not leftist talking points.

They're just not, a hard thing to know what to do with, because you have to also keep the energy up across the broad left coalition, you can't compromise that, but you also have to try to appeal these weird little centristy groups or possibly people on the left, but who might not have come out to vote, but you need them to come out to vote. Like it's, it's weird calculus. And I I don't think there's some easy answer to how to get elected in November

0:42:37 Matt: Yeah, yeah, exactly.

0:44:41 Thomas: Against Trump. There just isn't.

0:44:41 Matt: Not, not At all. And there's no easy way through immigration policy politically at all, or let alone logistically. But, and when, when Biden is saying that I'm not going to use the military to pull people out of their houses and round them up and put them in camps, he's literally talking about something that Donald Trump has said he's going to do, which is horrifically worse than anything this administration is going to deal with. It's a hell of a trolley problem. I'll tell you that. I mean, it's really just like you're looking at these two tracks. And my

0:44:57 Thomas: Yeah. Yeah. I tell you? I think it's a very easy trolley problem. I think people just don't like looking at it for what it is. It is a trolley program with a whole bunch of people on one track. And by the way, a bunch of People on the other track, too. It's not an easy Trolley problem. Problem in the sense that there's no harm on either track. There's definitely harm on both tracks. There's just a whole shitload more on one.

0:45:07 Matt: Well, yeah, right. No, yeah? Yeah. I agree. I agree, but I'm also thinking long-term. I guess I want to share my concerns about this rule if a judge actually upholds it, and who knows? I mean it It hasn't worked yet to use U-12F this way, but if it does, then you have just handed the next Republican administration a very powerful tool and you've set a permanent precedent that is not going to be rolled back. And that is very concerning to me. Use this language, I think, to appease, to try to appease people like me to say, well, this is temporary. And once we get it down to under $1,500 a day, then this isn't how we're going to do it. It's just an emergency provision. But this is contemporary in the same way that the Bush tax cuts were temporary, right? Everybody knows that's not, you know, you're not going to roll back the tax cuts. They're going to stay there.

0:45:55 Thomas: Yeah, that's a good comparison. Yeah.

0:45:58 Matt: And I think about those all the time because, you know, this is just such a good political strategy to say that we're going to do this one thing under this one president. It's going to be temporary. Everybody's goingto love it. We'll undo it at some point. And then when you try to undo it, well, now you're changing the law. Now you're changing the status quo five years later. That's just something to look out for. It's a concern. Am just hoping the courts do what the courts have done to Trump, that they'll do the same thing here and give a clear statement about why the president can't actually control eligibility for asylum to this degree. We see. And I certainly will be following it. And I've got at least a couple of guests I want to come on in the next few months to talk about this, this because I want to keep talking about it.

0:45:58 Thomas: Yeah.

0:46:32 Thomas: Man, I hate this situation so much. Okay. But I guess again, we're, we're out of time, especially cause I have to turn this around right away.

0:46:39 Matt: I do have one fun thing, just like two minutes.

0:46:42 Thomas: One little fun thing, but before we get to any fun, no fun allowed currently, uh, I just want to have an accurate, all I want is an accurate picture. I don't, I'm not trying to whitewash anything. I think This likely sucks real bad. And especially that warning that you just gave there, yeah, I, a good thing to think about, that's another reason why this is a very dangerous game to play, even if it's maybe the the move to try to win in November, it's a dangerous game, you know, and and guess like we could hope that if he wins in November then he can kind of undo some of this, but as you say, I don't know that he will.

I don't know that it, things don't tend to work that way, like something is used and is, you know, people kind of of bring it into their status quo and no one yells about it enough, then there's not a whole lot of incentive to go back and fix things.

But I guess I want to ask you, an overall picture from everything you know and from your knowledge of this issue, your deep knowledge of this issue, effectively, how much worse did Biden just make the world versus how much was this? It sounds like, again, some of this was already in place, of this might instantly get smacked down.

Like, taking that all together, if you could bottom line for us how much is it, uh, just made things a lot worse for these, you, particular people, versus theatrics, it actually doesn't really change much, that kind of thing, if you can, you give us some idea of that? Well

0:46:43 Matt: Yeah. Yeah, sure. Sure.

0:47:58 Matt: Will say for sure that people will die because of disorder. I have no doubt of that. That's not unusual when you change immigration policy. But I also think that the tragedy of these kinds of things is that we'll never know, because we're going to have so many people turned away that we're never going to be heard. It's impossible to know what the net effect is. Now, there is a different kind of flow of people coming right now than there has been in the past, from a much broader base. And as we've talked about before, the trafficking networks are much more active than they have been. It's hard to say, but I, just as somebody who, yeah, sure, right, sure.

0:48:25 Thomas: But I want to make sure we're answering, you're answering the the right question, how much did this order versus whatever was already the status quo before this, how much did that actually change, that difference is what I want to make sure we're getting. Yeah.

0:48:36 Matt: Sure. Well, making it harder for people to even get to the interviews in the real last chance scenarios is a big change. No, I mean, it's, I will say that the problem is because you're already stacking it on top of this other order that we really have a problem with and is arguably already under international law to restrict people who are already here. Because the law of refugee convention and our domestic law is, if you're in the United States, if you made it across the border, you have to have the right to apply for asylum. So I do think that long-term, this is making things much worse because it's a bad trajectory. But again, it's not, I know, it's so complicated. It's it's so nuanced and, I can't contemplate another Trump administration, but this is not great either.

0:48:50 Thomas: Yeah.

0:49:16 Thomas: This sucks. Well, that sucks, Matt. Um, all right, I guess if we're, if we're done being bummed out for the moment, uh, you have something to perhaps un-bum us out de -bum -us out.

0:49:25 Matt: So I do. And, you Know, it's been like at least a month and a half since we've talked about fonts. So I have to give you, it is a

0:49:27 Thomas: Oh, It's been not that long, but it feels that long.

0:49:37 Matt: Typeface story from the Seventh Circuit. Frank Easterbrook is a very famous Seventh Circuit judge. He's been on the bench since 1985. I think he's recall now, but he issued an otherwise unexceptional decision that wouldn't have made the news, except the last three pages are talking about fonts. And I'm going to send you this decision so that you can look at the last 3 pages, and you can enjoy the visual feast that he's provided at the end of this.

Now, this is filed, he's addressing an attorney named Jason Epstein, who actually was contacted by Reuters over this story and is very defensive of his choices, starting on page 4 of this, and we'll post obviously a link to it. See that at the end of page, in the next to last paragraph, he says the appeal must be dismissed. That's usually where things would end.

He then goes on to say, we are publishing this opinion, not just to make these obvious points, but to urge all lawyers to read and follow the Circuit's Practitioner's Handbook for Appeals. And now he goes on to talk about fonts. And there's a whole page where he quotes from the handbook. There's a full page where

0:50:26 Matt: Matthew Butteridge, who I've mentioned before, the... going to love this. So at the the end of end page of page five, he addresses Jason Epstein directly and he mentions that his brief is set in Bernhard Modern, a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show.

0:50:26 Thomas: Oh, Wow. Subjects

0:50:41 Matt: Next page, now you're going to see something that's going to hurt your eyes. Changes typefaces just to show the reader how offensive Bernhard Modern is. So in the next page, he puts his decision.

0:50:52 Thomas: We gonna find out this is you in a disguise, like, this is, you've been a judge this whole time from 1985, all

0:50:54 Matt: I would would do this on a letter or an email, maybe. I wouldn't do this in a published decision. But Easterbrook is known to be really harsh on attorneys the

0:51:02 Thomas: Of a sudden Matt walks away and the limp wears off, and you're like, wait a minute, he was that font judge, that, no, the limp goes on, I guess, maybe he's older. I don't know.

0:51:05 Matt: Whole time. Yeah, yeah, yeah. Right, right. You can see this. And he's citing Matthew Butterick, who we've mentioned before, who designed the Equity font, one of my very favorite fonts, a for a lawyer's book, which is an excellent book. And let me just read the last paragraph, and then we're done. Judges are long-term consumers of lengthy texts. To present an argument to such people, people. Council must make the words easy to remember and read and remember. The fonts recommended in our handbook and typography for lawyers promote the goals of reading, understanding, and remembering. Display faces such as Bedoni or Bernhard Modern wear out judicial eyes after just a few pages and make understanding harder. We hope that Bernhard Modern has made its last appearance in an appellate brief.

0:51:43 Thomas: Appeal is dismissed as the last.

0:51:45 Matt: Yep. Yep, that's it. And he had previously, yeah, no, this is really, just seeing it, Bernhard Modern, because I know what it looks like, but seeing it in a judicial decision, it really shows you should not be filing that with the court. Jason Epstein was contacted by Reuters, and he was very defensive. He said he's been using Bernhard Modern for 25 years. He doesn't know what the problem is.

0:51:47 Thomas: Oh boy. That's, that's fantastic.

0:52:01 Thomas: Wow.

0:52:01 Matt: Yeah. Stand by it.

0:52:01 Thomas: It's not very modern then I guess.

0:52:03 Matt: Yeah, yeah. So fonts matter, people. Typefaces matter. Stick with things people can read.

0:52:07 Thomas: Yeah. I fully support this judge on this. Like This is, this wouldn't even say trolling. Like it's, it's, this and but also important, yeah, construct. It's not like, you know, reducing the, you know, image of the court. It's not ruining the reputation of the court. Like, yeah, no, it's a little fun, it's a little unorthodox to to do this, but I really like this, is really rubbing his nose in his own terrible font in a way that I this is what your brief sounded like, wow, it is, it does look horrible, though. It makes the point though, it

0:52:10 Matt: Yeah? It's instructive. It is. Yeah.

0:52:30 Matt: Yeah! This is what you look like. Yeah it's really, yeah, yeah yeah yeah basically. Basically. Yeah,

0:52:41 Thomas: Really does

0:52:41 Matt: Yeah, effective. So I appreciate them.

0:52:43 Thomas: And And, he even did, there's a little part you didn't put in here where there's a parenthetical that says, uh, parentheses, a passage of 12 point Bernard modern, such as this sentence requires a magnifying glass because the X height is so low and that's in reduce, you know, he, he reduced the font down.

0:52:49 Matt: Yeah. Yeah in 12 point.

0:52:59 Thomas: Oh boy. This this is an old judge that just has no Fs to give anymore. And it was just like, okay.

0:52:59 Matt: Yeah yeah. Oh he's always been like this. He's famous for being cranky. Easterbrook.

0:53:06 Thomas: Well, there you go.

0:53:07 Matt: Yeah he's always been liked as an attorney. So yeah so just a little fun ending on the way out after talking about some serious stuff.

0:53:16 Thomas: Good times. All right. Well, I've got to immediately get to editing this very show that hopefully you're hearing, um, thanks, uh, Matt, for this kind of emergency recording, um, do feel like I understand that better, and it, and it sucks, and I'm still mad, uh,

0:53:27 Matt: Be coming back on it. There's more to talk about but I appreciate taking the time today.

0:53:30 Thomas: All right, thanks so much for listening, everyone, uh, so much, Matt, for the breakdown, and uh, we'll see you very soon with what was going to be today's show on Monday, and

0:53:39 Matt: All right. Bye.

0:53:41 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:53:58 Thomas: Prosecuted, oh God, are they, they doing, doing [bleep] yard work, I come here after a red eye flight and In The morning, try to sleep, and somebody is mowing a lawn with a gas, with diesel truck combined mower, like a, like, and, and it just, the loudest fucking bullshit for three hours, and I was like, There's no Grass that long, and, and how could you be doing it again? What is happening? Hold on a sec, unless somebody's, the Wright Brothers are starting up an old propeller plane, hold on.

0:54:05 Matt: Oh, no.

0:54:17 Matt: You still